XWATERS.COM TERMS OF USE
INTRODUCTION
Welcome to xwaters.com, a global community of water sports enthusiasts and professionals (the "Website").
On the Website, we provide a wide range of online services, resources and features for surfing and stand-up paddling, windsurfing, kitesurfing, and catamaran sailing lovers. In particular, the Website includes a community blogging module with multimedia content sharing, updates on sports events, tutorials, and advice from professionals and teachers, and a possibility to receive and/or, subject to further conditions, give ratings and achievements, as well as a wiki section with detailed descriptions of the best water sports locations worldwide, weather forecasts, and business listings (the "Services").
This page (together with the documents referred to on it) contains the terms of use on which you make use of the Website whether as a guest or any registered user (the "Terms").
Please read these Terms carefully before you start to use the Website. By accessing the Website or using the Services, you accept these Terms and you agree to be bound by them, whether or not you register. If you do not accept these Terms, please do not use the Website. Where applicable under law, these Terms constitute a "writing signed by you".
In these Terms, “you” means the individual using the Website and “we”, “us” and “our” means Uncharted Media Ltd. and its corporate affiliates.
Some of the Services may be subject to payment of a fee. In such event, you understand that the payment services will be provided by a third party and that you will have to adhere to the terms and conditions of such third party.
INFORMATION ABOUT US
We operate the Website. We are registered in the British Virgin Islands under company number 1578201 and have our registered office at Vanterpool Plaza, Wickhams Cay I, floor 2, Road Town, Tortola, British Virgin Islands. We are a limited liability company.
CHANGES TO THE TERMS
We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms at any time without further notice. If we do this, we will post the changes to these Terms on this page and we may send registered users an email notifying you of the change. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU MUST STOP ACCESSING THE WEBSITE OR USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE WEBSITE OR RECEIVING OUR EMAIL NOTIFYING YOU OF THE CHANGE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
ACCESSING THE WEBSITE
Access to the Website is permitted on a temporary basis, and we reserve the right to withdraw or amend any of the Services we provide on the Website without notice (see below). We will not be liable if for any reason the Website is unavailable at any time or for any period.
We may restrict access to some parts of the Website to users who have registered with us. Some parts of the Website or some of the Services may be restricted to certain categories of users as we may decide from time to time.
If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our opinion you have failed to comply with any of the provisions of these Terms or any applicable law.
You are responsible for making all arrangements necessary for you to have access to the Website. You are also responsible for ensuring that all persons who access the Website through your internet connection are aware of these Terms, and that they comply with them.
ELIGIBILITY AND REGISTRATION
You must be 13 years or older to use the Services. By registering at the Website, you represent and warrant that you are 13 or older and that you have the capacity to understand, agree to and comply with these Terms. You should provide true, accurate and complete registration information to be a registered user of the Website, and also maintain the accuracy of this information. As part of the registration process, you will be asked to select a username and password and you will be responsible for all activities occurring under your username and for keeping your password secure. We may refuse to grant you a username that impersonates someone else, is or may be protected by trademark or proprietary rights law, or is vulgar, offensive or otherwise inappropriate, as determined by us in our sole discretion.
Registered users will be entitled to use our "Company module" and register their company profile(s) in the following categories: school, rental, store, travel expert, accommodation, food and drink, or any other category that we may, from time to time, decide to allow for registration. When creating a company profile, you agree to take special care when entering the name and address of the company and you acknowledge that you will not be able to change these details after you submit them to us. You also acknowledge that the registration and use of our "Company module" may be subject to payment of a fee (on a per location basis) and/or specific terms and conditions.
USER CONDUCT AND APPROPRIATE CONTENT
The Website is made available for your personal but, in certain cases, also commercial use. You may not use the Website for any illegal or unauthorized purpose. International users agree to comply with all local rules regarding online conduct and acceptable content, including laws regulating the export of data from the United States or your country of residence. You are solely responsible for your conduct and any data, text, information, graphics, photos, profiles, audio and video clips, links and other content (the "Materials") that you submit, post, and display on the Website.
We may, but shall have no obligation to, remove or limit access to Materials originating from any user of the Website that we determine in our sole discretion are unlawful, fraudulent, threatening, libelous, defamatory, obscene or otherwise objectionable, or infringe or violate any party's intellectual property or other proprietary rights or these Terms. Further, under no circumstances do we have any obligation to check the accuracy or truthfulness of any Materials, nor to monitor any use of the Services.
We reserve the right to deactivate user accounts and user names that have been inactive for more than 180 days.
We reserve the right to restrict parts of the Website (especially in our "Blogs" section and the "Beach Guide" module) to certain categories of registered users.
CONDITIONS FOR USE
You agree to abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account made by you including the content of your transmissions through the Website. By way of example, and not as a limitation, you agree NOT to:
(i) Defame, abuse, harass, stalk, threaten or otherwise violate the rights (such as rights of privacy and publicity) of others.
(ii) Publish, distribute and/or disseminate any harmful, obscene, indecent, unlawful, libelous, profane, defamatory, infringing, inappropriate, hateful, or racially, ethnically or otherwise objectionable material or information.
(iii) Use other users' personal data for purposes other than establishing contact that is reasonably expected to be welcomed by such other users.
(iv) Submit Materials that are unlawful or promote or encourage illegal activity or that would violate the property rights of others.
(v) Submit Materials of any third party without such third party's prior written consent, or Materials that falsely express or imply that such Materials are sponsored or endorsed by us.
(vi) Create a false or misleading identity of, including, but not limited to, our employee, or falsely state or otherwise misrepresent your affiliation with a person or entity, for the purpose of misleading others as to the identity of the sender or the origin of a message or to harvest or otherwise collect information about others.
(vii) Transmit, email or post any material that contains in any form software viruses or such programs as including but not limited to, Trojan horses, worms, time bombs, cancel-bots, computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(viii) Use the Website in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Website.
(ix) Attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Website, through password mining or any other means.
(x) Modify, adapt, translate, or reverse engineer any portion of the Website, or use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion or the Website, except as expressly authorized by us in writing.
(xi) Reformat or frame any portion of the Website or any part of it.
(xii) Upload, post or disseminate content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary right of any party or infringes any intellectual property law or any other applicable law.
(xiii) Remove any copyright, trademark or other proprietary rights notices contained in or on the Website.
(xiv) Disseminate any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of such solicitation.
(xv) Interfere with another user's use and enjoyment of the Website.
(xvi) Harvest or collect email addresses or other contact information of users, including usernames, from the Website by electronic or other means.
(xvii) Provide false, inaccurate or misleading information about any location (including, in particular, safety instructions for such location) into our "Beach Guide" section.
(xviii) Misuse our achievements system in any manner.
Notwithstanding paragraphs (x) and (xi) above, certain registered users will be entitled – and encouraged – to make changes, modifications and adaptations in our "Beach Guide" wiki module, provided these are made in good faith and respecting other provisions of these Terms.
INTELLECTUAL PROPERTY RIGHTS
We and our affiliates and licensors own and retain all rights in the Website and the Services, which contain proprietary and confidential information that is protected by applicable intellectual property and other laws, including without limitation all text, software, photographs, graphics, page layout, and design presented on the Website. Those works are protected by copyright laws and treaties around the world. All such rights are reserved. Except as expressly authorized by us, you may not copy, modify, publish, transmit, distribute, perform, display or sell any of our proprietary information.
You may print off one copy, and may download extracts, of any page(s) from the Website for your personal use. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text. Our status (and that of any identified contributors) as owners of copyright or the authors (as the case may be) of the respective material must always be acknowledged.
You must not use any part of the materials on our site for commercial purposes without obtaining a licence to do so from us or our licensors.
We do not claim any ownership rights in any Materials that you submit, post, or display on the Website. Unless we specifically agree with you otherwise, after submitting, posting or displaying Materials on the Website, you continue to retain all ownership rights in such Materials, and you continue to have the right to use your Materials in any way you choose. By submitting, posting or displaying any Materials on the Website, you hereby grant to us and our agents and assignees a limited license to use, modify, publicly perform, publicly display, reproduce, and distribute such Materials solely in connection with the Website and the Services or the promotion thereof. The license you grant to us is non-exclusive, fully-paid and royalty-free, sub-licensable, and worldwide. This license will terminate at the time you remove your Materials from the Website.
COPYRIGHT POLICY
You may not post, modify, distribute, or reproduce in any way any copyright material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. We respect the intellectual property rights of others and reserve the right to terminate any user's access to the Website according to these Terms if we are notified that such user's activities infringe the rights of third parties on more than one occasion. If you believe that your work (or the work of a third party on whose behalf you are entitled to act) has been copied in a way that constitutes copyright infringement, please file a copyright infringement notification ("Notice") with us, by sending a written communication which should include the following information, in the same order as is set out in (i) to (x) below:
(i) statement that you have identified material on the Website which infringes your copyright (or infringes the copyright of a third party on whose behalf you are entitled to act, if applicable); (ii) a description of the copyrighted work that you claim has been infringed, which should include the type of work and any relevant further details; (iii) the country or countries to which your copyright applies; (iv) a description of the way in which the copyright material has been infringed; (v) a description of where the material that you claim is infringing is located on the Website (including a URL and/or screen shot); (vi) your address, telephone number, and email address so that we may get in contact with you; (vii) the contact details that you would like us to provide to the alleged infringer so that they may contact you directly, in order to attempt to resolve the complaint; (viii) a statement by you that you have a good faith belief that the disputed use of the copyright work is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law; (ix) a statement by you, made under penalty of perjury, that the above information in the Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf and (x) an electronic or physical signature (which may be a scanned copy) of the copyright owner.
Once you have completed the Notice, having included all of the information set out above, please send it to: Address: Uncharted Media, Ltd., Vanterpool Plaza, Wickhams Cay I, floor 2, Road Town, Tortola, British Virgin Islands; E-mail: thefish@xwaters.com; Phone: +44 20813 33459.
If you are unsure as to your rights in respect of your copyright material, or whether there has been an infringement of your rights, we suggest that you take legal advice before sending a Notice to us. This so-called "notice and takedown" process is regulated by statute. There may be negative consequences if you falsely allege copyright infringement or send a Notice to us in bad faith.
Copyright Counter Notice
If you believe that any material that you have uploaded on to the Website has been removed in error, or that the content in question does not infringe the copyright of any third party, you may file a counter-notice ("Counter-Notice") with us, by sending a written communication which should include the following information, in the same order as is set out in (i) to (iv) below:
(i) specific details of the material that has been removed or to which we have disabled access and the accompanying location of such material; (ii) your name, address, telephone number, email address and a statement that you will accept service from the person (or an authorized representative of such person) who provided us with the complaint in question; (iii) a statement by you that you believe (acting in good faith) that the material identified above was removed as a result of a mistake or incorrect identification of the material to be removed and (iv) an electronic or physical copy of your signature (which may be a scanned copy).
Once you have completed the Counter-Notice, having included all of the information set out above, please send it to: Address: Uncharted Media, Ltd., Vanterpool Plaza, Wickhams Cay I, floor 2, Road Town, Tortola, British Virgin Islands; E-mail: thefish@xwaters.com; Phone: +44 20813 33459.
If you are unsure as to your rights in respect of your material, or whether there has been an infringement of copyright, we suggest that you take legal advice before sending a Counter-Notice to us. This so-called "notice and takedown" process is regulated by statute. There may be negative consequences if you make false allegations or send a Counter-Notice to us in bad faith.
PRIVACY AND PERSONAL DATA
We take your privacy very seriously and collection and use of personal information is governed by our Privacy Policy. Click here to review our Privacy Policy.
Information collected in connection with your access to the Website and use of the Services may be processed and stored in the United Kingdom, or other countries where we or our parent, affiliates, subsidiaries or service providers maintain facilities. If you live outside the United Kingdom and use the Website, you expressly consent to the transfer to the United Kingdom of the personal information you provide to us or such other countries as we may disclose from time to time. Additionally, you agree that we may use your user name to authenticate you on any service provided by us or our affiliates.
LINKING
You may link to our home page or other pages within the site, and we encourage you to do so. However, you should note that this linking permission is granted on the condition that you do so in a way that is fair and legal and does not damage our reputation or take advantage of it. You must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
We reserve the right to withdraw linking permission without notice. The site from which you are linking must
comply in all respects with the content standards set out in these Terms above.
Where the Website contains links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
DISCLAIMER OF WARRANTIES
We (which for the purposes of this section includes our affiliates, licensors, partners, members, suppliers, employees, consultants and agents) disclaim any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information, content or materials displayed on the Website.
Commentary and other materials posted on the Website are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to the Website by anyone who may be informed of any of its contents. Specifically, we disclaim all liability and responsibility arising from any reliance placed on (i) any advice on training, practices or tricks submitted to the Website by third parties; or (ii) any information in our "Beach Guide" section which may be based on contributions from third parties.
We further expressly disclaim (1) that the Website or Services will meet your requirements and will be uninterrupted, error-free, timely, or secure, (2) that defects or errors will be corrected, (3) that the Website or the server that makes it available are free of viruses or other harmful components, and (4) that the use of or the results of the use of the Website or the content made available as part of the Website or the Services will be correct, accurate, timely, or otherwise reliable.
We expressly disclaim any and all responsibility and liability for the conduct of any other user, and expressly disclaim that the content and Materials of the Website input by other users is correct or accurate.
We further expressly disclaim any and all responsibility and liability for the accuracy of any weather forecasts and/or maps on the Website.
WE PROVIDE THE WEBSITE AND SERVICES, AND ALL MATERIALS, INFORMATION (INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, LINKS OR ANY INFORMATION OR MATERIALS OBTAINED OR ACCESSED THROUGH THE WEBSITE), PRODUCTS, AND SERVICES INCLUDED THEREIN "AS IS", "WITH ALL FAULTS", "AS AVAILABLE" AND WITH NO WARRANTIES WHATSOEVER. WE EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM FROM COMPUTER VIRUS, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Some states or countries do not allow the exclusion or limitation of implied or other warranties, so the above disclaimers and exclusions may not apply to you.
YOU AGREE THAT YOUR USE OF THE WEBSITE OR THE SERVICES IS ENTIRELY AT YOUR OWN RISK.
HOLD HARMLESS AND INDEMNITY
You agree to hold harmless and indemnify, and at our request defend, us our subsidiaries and other affiliates, and their respective owners, officers, managers, members, agents, and employees, from and against any third party claim arising from or in any way related to your use of or conduct on the Website, or your Materials, including any liability or expense arising from all claims, liabilities, losses, damages (actual and consequential), suits, judgments, litigation costs, expenses, and attorneys' fees, of every kind and nature. In such a case, we will provide you with written notice of such claim, suit or action.
LIMITATION OF LIABILITY
YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. UNDER NO CIRCUMSTANCES WILL WE, OUR SUBSIDIARIES AND OTHER AFFILIATES, AND THEIR RESPECTIVE OWNERS, OFFICERS, MANAGERS, MEMBERS, AGENTS, AND EMPLOYEES, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOSSES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES), WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH USE OF, OR INABILITY TO USE, THE WEBSITE OR ANY OF THE SERVICES, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. SUCH LIMITATION OF LIABILITY SHALL APPLY (I) WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE WEBSITE OR ANY OF THE SERVICES, FROM INABILITY TO USE THE WEBSITE OR ANY OF THE SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE WEBSITE, ANY COMPONENT THEREOF OR ANY OF THE SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES), AND (II) NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. IF YOU ARE DISSATISFIED WITH THE WEBSITE OR ANY PART OF THE WEBSITE OR ANY OF THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE OR THE RESPECTIVE SERVICE. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU FOR ANY AMOUNT EXCEEDING ONE THOUSAND US DOLLARS ($ 1000).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU IN SO FAR AS SUCH EXCLUSIONS AND LIMITATIONS ARE NOT PERMITTED.
LEGAL COMPLIANCE
You shall comply with all applicable domestic and international laws, statutes, ordinances, regulations, contracts and applicable licenses regarding your use of the Website.
We reserve the right to take any legal or technical remedies to prevent the violation of these Terms and to protect the Website, our users, and our rights and property. In particular, we are entitled to, and you agree that we may, delete any information or material provided by you on the Website which we consider inappropriate or factually wrong without any explanation or notice.
MISCELLANEOUS
These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of laws provisions or your actual state or country of residence.
The parties agree to submit to the personal and exclusive jurisdiction of the courts located in the County of Santa Clara, California.
If for any reason a court of competent jurisdiction finds any provision or portion of the Terms to be unenforceable, the remainder of the Terms will continue in full force and effect. You shall not assign these Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without our prior written consent. Any such purported assignment or delegation will be null and void and of no force or effect. Each of our affiliates are express and intended third party beneficiaries of these Terms and may enforce any of its terms and exercise any of the rights to the same extent as we may.
Without limiting the foregoing, under no circumstances shall we be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God (if and as recognized by applicable law), war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.
These Terms constitute the entire agreement between you and us with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of the Terms by a party will be effective only if in writing and signed by a party.
YOUR CONCERNS
If you have any concerns about material which appears on our site, please contact thefish@xwaters.com.
These Terms are effective from: 15 December 2010
Thank you for visiting our Website.